Article -- Rights and wrongs: Taft isn't entitled to keep public records hidden from Ohioans

Sunday, November 20, 2005

Columbus Dispatch

The Ohio Constitution doesn’t give Gov. Bob Taft the right to invoke executive privilege in order to conceal public records.

The Ohio Supreme Court, dominated by Republicans who generally oppose judicial activism, should not invent such a right.

Taft is being sued by Democratic state Sen. Marc Dann of the Warren area, who is running next year for attorney general. For months, Dann has been ripping Republicans for unethical behavior. He wants to see internal administration reports that might link Taft to the Ohio Bureau of Workers’ Compensation investment scandals.

Taft’s attorney, Kathleen M. Trafford, argued before the high court last week that the governor has an executive privilege, which exempts from publicrecords laws communications between him and his lieutenants.

The state constitution allows the governor to "require information, in writing, from the officers in the executive department." Trafford said that section implies a gubernatorial right to control whether the communication is publicly disclosed.

The court should reject such transparent fabrication.

Taft contends that the disclosures would inhibit "a free flow of complete, accurate and timely information" from his cabinet.

True, he and future governors might not get the best advice if advisers believe the public will be reading over their shoulders. But if the public agrees that the governor should have this executive privilege to an exemption from the public-records law, the legislature can grant it. First, however, should come a full debate on the circumstances under which the governor would be allowed to keep documents sealed.

Writing such a law is the legislature’s job, not the Supreme Court’s.

A related question: Is Taft standing up for a principle or just trying to hide something? Ohioans never will know unless the material is made public.

Unfortunately, partisanship complicates this case. Because Dann and his attorney, Frederick Gittes, are zealous partisans, some Ohioans will view the litigation as a mere political scrap, rather than a crucial battle about the public’s right to know.

In May, five Republicans among the seven justices recused themselves from a case involving coin dealer Thomas W. Noe, the Toledo-area wheeler-dealer at the center of the coins-and-collectibles scandal involving workers’ comp. All had received campaign contributions from Noe. Because the executive-privilege lawsuit grows out of the same scandal, perhaps these justices should recuse themselves from this one.

If the five remain on the case, fabrication of an executive-privilege right by the court’s GOP majority would be perceived as a partisan act by the justices to help a fellow Republican duck legitimate questions about the state scandals.

Such an outcome would harm the public’s right to know and the court’s reputation.